Missouri Bar’s Proposed Rule / Statute On Unauthorized Practice Of Law

  1. The [Supreme Court/Legislature] of [State], in the exercise of its [exclusive] jurisdiction to define the practice of law, and to prohibit the unauthorized practice of law within this jurisdiction, adopts the following [rule/statute], which governs the practice of law in this jurisdiction by a lawyer licensed to practice law in another United States jurisdiction.
  2. A lawyer licensed to practice law in another United States jurisdiction, but not in this jurisdiction, does not engage in the unauthorized practice of law when the lawyer represents a client in this jurisdiction, provided the lawyer’s services:
  1. are performed on a temporary basis and are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the representation; or,
  1. are services that may be performed by a person who is not a lawyer without a license or other authorization from a state or local governmental body; or,
  1. are performed on a temporary basis and are in or reasonably related to a pending or potential proceeding held or to be held before a tribunal or administrative agency in this or another jurisdiction, provided the lawyer is authorized by law, or court or agency order, to appear in such proceeding or reasonably expects to be so authorized; or,
  1. are performed on a temporary basis and are in or reasonably related to a pending or potential arbitration, mediation, or other alternate dispute resolution proceeding held or to be held in this or another jurisdiction; or,
  1. are not within subparagraphs (3) or (4), but are performed on a temporary basis and:
  1. are performed for a client who resides or has an office in a jurisdiction in which the lawyer is authorized to practice; or,
  2. arise out of or are reasonably related to a matter that has a substantial connection to a jurisdiction in which the lawyer is admitted to practice; or,
  3. are provided only with respect to a matter that arises out of or otherwise is reasonably related to the lawyer’s practice on behalf of an existing client; or,
  1. are performed on a temporary basis and are governed primarily by federal law, international law, the law of a foreign nation, or the law of a jurisdiction in which the lawyer is admitted to practice.
  1. A lawyer licensed to practice law in another United States jurisdiction but not in this jurisdiction does not engage in the unauthorized practice of law in this jurisdiction:
  1. if the lawyer is an employee of a client and acts on behalf of the client or an affiliate(s), except for work for which pro hac vice admission is required; or
  1. when the lawyer renders services in this jurisdiction pursuant to authority granted by federal law, or the law or a court rule of this jurisdiction.
  1. A lawyer who seeks the benefit of this [rule/statute] must be a member of the Bar and in good standing in all courts and jurisdictions to which he/she has been admitted. The lawyer also must be licensed to practice law in a United States jurisdiction that has adopted a [rule/statute] substantially similar to this [rule/statute.] [Italicized words are optional.]
  2. A lawyer not licensed to practice law in this jurisdiction, but who is licensed to practice law in any other United States jurisdiction, and who appears in any court of record or before any administrative tribunal in this jurisdiction also must comply with the Rules [Rules of Court of this jurisdiction] governing pro hac vice admission.
  3. Except as authorized by this [rule/statute] or law, a lawyer who is not admitted to practice in this jurisdiction shall not:
  1. establish an office or other permanent presence in this jurisdiction for the practice of law; or
  2. represent or hold out to the public that he/she is admitted to practice law in this jurisdiction.
  1. Any lawyer who engages in the multijurisdictional practice of law, whether in accordance with this rule/statute or not, is subject to the Rules of Professional Conduct and the Rules of Procedure of this jurisdiction regarding attorney discipline.

Comment

[1] There are occasions in which a lawyer admitted to practice in another jurisdiction, but not in this jurisdiction, may engage in conduct in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of the client, the public or the courts. Paragraph B describes those instances in which such conduct does not constitute the unauthorized practice of law and is permitted under this rule.

[2] Paragraph B(2) applies to services that a person who is not a lawyer may perform without a license or other authorization from a state or local governmental body. For example, in the context of a private alternative dispute resolution, a non-lawyer may serve as a mediator or arbitrator. Also, in some administrative proceedings, a non-lawyer is permitted by law to appear on behalf of a party.

[3] Paragraph B(3) provides that a lawyer rendering services in this jurisdiction on a temporary basis does not engage in the unauthorized practice of law when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which the lawyer reasonably expects to be admitted pro hac vice. Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly, a lawyer admitted in another jurisdiction may perform services in this jurisdiction in connection with pending litigation in which the lawyer is permitted to appear. Such conduct includes conducting depositions but does not include appearances before a tribunal unless the lawyer is admitted to appear pro hac vice.

[4] Paragraph B(4) permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternate dispute resolution proceeding held or to be held in this or another jurisdiction. However, the lawyer must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation if the court rules or law require the lawyer to do so.

[5] Paragraph B(5) applies to services that are unrelated to a pending or potential appearance before a tribunal or other dispute resolution forum. It addresses temporary services on behalf of a client who resides in or has an office in the jurisdiction in which the lawyer is authorized to practice. For example, the lawyer may represent a resident of the lawyer’s jurisdiction in connection with the sale of goods. Or the lawyer who represents a company with an office in the lawyer’s jurisdiction may perform legal services for the company in this jurisdiction. This paragraph also addresses temporary services that arise out of or are reasonably related to a matter that has a substantial connection to a jurisdiction in which the lawyer is authorized to practice. For example, a lawyer representing a client in connection with the purchase of property in the lawyer’s home-jurisdiction may meet with the client or meet with the seller and its lawyers in this jurisdiction. Finally, this paragraph also permits temporary services that are provided with respect to a matter that arises out of or otherwise is reasonably related to the lawyer’s practice on behalf of an existing client. For example, if a lawyer has been performing estate planning services for a client in a jurisdiction in which the lawyer is admitted to practice, and the client subsequently retires and moves to a jurisdiction where the lawyer is not admitted to practice, the lawyer still may continue to perform estate planning services for the client.

[6] Paragraph B(6) applies to those instances where the matter being handled by the lawyer is governed primarily by federal law, international law, the law of a foreign nation, or the law of the jurisdiction in which the lawyer is admitted to practice. For example, a lawyer admitted to practice in another jurisdiction may be retained by a client in this jurisdiction to provide advice solely with respect to compliance with certain federal tax statutes. Another example would be a state chartered corporation having its principal office in the United States and also an office in a foreign country consulting with an attorney who is familiar with the law in the country but who is not licensed to practice law in this jurisdiction to provide advice concerning that foreign country’s law.

[7] There is no single test to determine whether a lawyer’s services are "performed on a temporary basis" and therefore may be permissible under subparagraphs (1), (3) - (6) of paragraph B. Services may be "temporary" even though the lawyer is in this jurisdiction for an extended period of time, as when the lawyer is representing a client in a single lengthy litigation in this jurisdiction on a pro hac vice basis.

[8] When a lawyer has been admitted pro hac vice or reasonably expects to be admitted pro hac vice to appear before a court or administrative agency, paragraph B also permits services to be rendered by a lawyer who is associated with that lawyer but who does not expect to appear before the court or administrative agency and who therefore has not himself/herself sought and will not seek admission pro hac vice. For example, a subordinate lawyer may conduct research, review documents or attend meetings with witnesses in support of the lawyer responsible for the litigation.

[9] The safe harbor provisions of paragraph C cover certain situations in which the provisions of paragraph B are not applicable. Paragraph C recognizes that it is impractical for a lawyer employed by a client -- e.g., a corporation -- to be admitted to practice in every jurisdiction in which the corporation has an office. For example, in-house counsel often has to render legal services to the client/employer in various out-of-state facilities, and in some cases, this may entail frequent relocation with only temporary residence in a particular jurisdiction. Since the corporation/client is unlikely to be deceived about the qualifications of the lawyer, the lawyer may act on behalf of the corporation without engaging in unauthorized practice. The lawyer also may act on behalf of the client’s other employees or an affiliate, but only in connection with the client’s matters.

[10] Paragraph D provides that any lawyer who seeks the benefit of the [rule/statute] must be a member in good standing in all courts and jurisdictions to which he/she has been admitted. An attorney who is on inactive status in any jurisdiction to which he/she has been admitted is not considered to be a member in good standing under the [rule/statute].

The second sentence in paragraph D is optional and provides that if a lawyer intends to seek the benefit of the [rule/statute], one of the jurisdictions in which the lawyer is admitted to practice must have adopted a substantially similar [rule/statute]. In short, a jurisdiction may, at its option, require reciprocal treatment for lawyers licensed to practice in its jurisdiction.

[11] Paragraph E requires a lawyer who intends to appear in court or before an administrative tribunal to obtain admission pro hac vice. Such authority may be granted pursuant to formal rules governing admission pro hac vice or pursuant to informal practice of the tribunal or agency. Under paragraph B(3), a lawyer is not engaged in the unauthorized practice of law when he/she appears before a tribunal or agency pursuant to such authority.

[12] Under paragraph F, it is a violation of this rule for a lawyer who is not admitted to practice in this jurisdiction to establish an office or other systematic and continuous presence in this jurisdiction for the practice of law or hold himself or herself out as authorized to practice law in this jurisdiction. Implicitly, the rule prohibits any communication advertising legal services to a prospective client(s) in this jurisdiction by a lawyer who is not admitted to practice in this jurisdiction. Whether and how a lawyer may communicate the availability of his/her services to a prospective client(s) in this jurisdiction is governed by Article VII of these Rules.

[13] Under paragraph G, the disciplinary authority of this jurisdiction is extended to other lawyers who render or offer to render legal services in this jurisdiction. For example, if an attorney is adjudged guilty of professional misconduct in this jurisdiction, the disciplinary counsel of each state in which the attorney is licensed to practice should be given notice of that fact and provided with a copy of any record of proceedings, and the licensing jurisdiction(s) should give consideration to the findings/recommendations of the disciplinary counsel of this jurisdiction.